Detainee Rights Create a Divide On Capitol Hill

By KATE ZERNIKE and SHERYL GAY STOLBERG

Published: July 10, 2006

The Supreme Court decision striking down the use of military commissions to bring terrorism detainees to trial has set off sharp differences among Republicans in Congress over what kind of rights detainees should be granted and how much deference should be shown the president in deciding the issue.

The debate is expected to consume the rest of the summer in Congress as lawmakers head into an election season expected to be dominated by issues of national security. The issue reflects the difficult legal, diplomatic and political choices the government faces in dealing with terrorism suspects.

The divisions do not fall strictly along traditional partisan lines and are as much within the parties as between them, particularly for Republicans. On one side of the debate are Republicans who believe Congress should give the president the authority to set up the kind of military commissions that were struck down by the court. Such commissions would sharply curtail defendants' rights.

On the other side are those who say the trials should be modeled on the military system of courts-martial, an approach that would give detainees more due-process rights than would the commissions. In between, many Republicans and Democrats alike argue for starting with the military judicial system and tweaking it to reflect the differences of trying terrorism suspects.

The debate will play out in a series of Congressional hearings quickly scheduled for this week, as lawmakers return to Washington after their weeklong Fourth of July recess.

Aides to President Bush said they had not yet reached any conclusions about what legislation should look like. Dan Bartlett, counselor to Mr. Bush, said lawyers for the White House, State Department and Justice Department were still reviewing the court's decision in the case, Hamdan v. Rumsfeld.

Senator Lindsey Graham, Republican of South Carolina, who is expected to take a leading role on the issue as a member of the Armed Services Committee, argued that the administration's version of the military commissions had to be ''reined in'' to make clear, for instance, that evidence gathered by coercive interrogation techniques could not be introduced as evidence.

''I'm trying to get my colleagues to think about the international community's reception to what we do,'' said Mr. Graham, a former military lawyer. ''We've got a chance to improve our image.''

In its decision, the Supreme Court said, on a 5-to-3 vote, that the planned commissions were unauthorized by federal statute and violated international law.

Administration officials, who have been consulting with Mr. Graham, are looking to him to play a central part in drafting legislation. Senators John W. Warner of Virginia, who is chairman of the Armed Services Committee, and John McCain of Arizona also are expected to be at the forefront for the Republicans, while Senator Carl Levin of Michigan is quite likely to emerge as a point man for the Democrats.

On the Judiciary Committee, Senator Arlen Specter of Pennsylvania, the Republican chairman, and Senator Patrick J. Leahy, the committee's ranking Democrat, who first proposed Congressional action on military tribunals in 2001, are also expected to play central roles.

The Supreme Court decision left lawmakers with the challenge of resolving a complicated legal issue under the pressure of a heated election season and a limited amount of time left on their calendar.

While both parties are united in saying they want to act quickly, they face fights over what form of trial to use and whether the protections of the Geneva Conventions apply to terrorism suspects.

In hearings on Capitol Hill this week, the House Armed Services Committee will take testimony from lawyers, including several sympathetic to the administration. Two Senate committees, Judiciary and Armed Services, will take testimony from constitutional lawyers and top military lawyers, who some Republican senators believe were ignored in the White House discussions that led to the establishment of commissions. The only administration officials scheduled to testify are lawyers from the Justice Department and the Pentagon.

While Republicans are divided on central issues, Democrats have their own challenge. They see the court's decision as a rare rebuke to Mr. Bush, and they hope to turn the debate into a broader one over presidential power. But they said they also recognized that they must cooperate on legislation or risk being portrayed as weak on terrorism.

Some Republicans and many Democrats say that the administration may have hurt itself by rebuffing efforts as early as 2001 by Republicans and Democrats in the Senate to set up some kind of military commission. ''Congress is going to want to be a full partner, and not a rubber stamp for this process,'' said Senator John Cornyn, Republican of Texas and a close ally of the White House.

The central question is what kind of forum to set up. Commissions allow the government wide berth in introducing evidence, including hearsay, which is banned in military courts, and restrict the rights of the accused to be present in the court and to see the evidence against them. Military courts-martial, while not as strict as civilian courts, restrict the kind of evidence that can be introduced and allow the accused to interview witnesses and see even classified evidence.